Opinion
2013-02-28
The PEOPLE, Plaintiff and Respondent, v. Demeaka L. ELLIS, Defendant and Appellant.
See 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 32 et seq. Superior Court of Alameda County, No. CH50155, Michael J. Gaffey, Judge. (Alameda County Super. Ct. No. H50155)
See1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 32 et seq. Superior Court of Alameda County, No. CH50155, Michael J. Gaffey, Judge. (Alameda County Super. Ct. No. H50155) Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
Bruiniers, J.
Demeaka Ellis was convicted of sexual activity with a 13–year–old girl, of making the girl available to another adult for lewd and lascivious acts, and of encouraging and attempting to force the girl to work for him as a prostitute. He argues that photographs taken during the victim's sexual assault examination were admitted in evidence in violation of his Sixth Amendment confrontation clause rights; that his right to present a defense was violated by exclusion of a journal written by the victim; and that he received multiple punishments for a single course of conduct in violation of Penal Code section 654.
All statutory references are to the Penal Code unless otherwise indicated.
We conclude that the disputed photographs are not testimonial hearsay and were properly admitted. In the unpublished portion of this opinion, we also find that the court did not abuse its discretion in exclusion of evidence, and reject Ellis's challenge to his sentence.
I. Background
The victim, Jane Doe, was a 13–year–old middle school student in March 2010, when the underlying events took place. Her mother, G.B., worked full time, and Doe regularly called her mother when she got home from school. Doe usually told her mother she was going to the library, which was across the street from their apartment, and usually was coming home from the library when G.B. arrived home at about 4:45 p.m. On March 10, 2010, Doe did not call G.B. after school and was not home when G.B. got home from work. G.B. looked for Doe at the library and was told they had not seen her. After searching the neighborhood without success, G.B. called the police.
On March 12, 2010, at about 9:30 p.m., G.B. received a phone call from Doe, who was crying and asked to be picked up. A woman then got on the phone and told G.B. to come get Doe “ ‘because he's choking her.’ ” The woman asked G.B. to meet her at a 7–Eleven convenience store. At the 7–Eleven, the woman told G.B. that “they” (apparently, Doe and another person) were driving. G.B. reported the situation to the police and returned home. G.B. received another call from Doe. G.B. then saw Doe running toward their home. Doe was quiet and crying and was wearing clothes that did not belong to her. G.B. called the police again and an officer came to their home.
Fremont Police Officer Michael Gilfoy interviewed Doe shortly after she returned home. Doe told him that she had been kidnapped by 10 men, who grabbed her and threw her in a car. Three of the men got into the car with her and the others ran off. Doe said she was choked, that the three men smoked marijuana, and that they took her to a house at the end of Chapel Street, which was a description of Ellis's home. The driver took off all of her clothes, touched her everywhere, made her touch his penis, put his penis in her mouth, and put his penis in her vagina. She protested but he punched her in the arm. He then gave her $20. The driver's name was “Shoog” (also spelled “Suge” in the record; hereafter Suge). Gilfoy examined Doe's neck and arms and saw no choke marks or bruises and he told her that the story did not make sense. Doe then revised her story and said that when she left the library the men offered her a ride home, grabbed her and threw her in the car. Gilfoy questioned this story as well and Doe gave him a third version. At some point, Doe's sister told Gilfoy that Doe lies a lot and Doe's brother told him she had previously run away. Later that night, when Doe went with Gilfoy to a hospital, she told him a different version of what had happened to her. According to Gilfoy, Doe said she had been with a man she knew as Suge, whom she later identified as Ellis. Doe acknowledged she had had sex with him and said she did not want him to get in trouble. Doe was later interviewed at the Child Abuse Listening and Interview Center (CALICO) and provided an account of the events. Still later, she was taken out of class at school to identify Ellis from a photographic array, and she provided a new account in writing.
At trial, Doe provided the following account of what she experienced from March 10, 2010, to March 12, 2010. On March 10, she went to the library after school. While she was using a computer in the library, she noticed that a man she did not know was standing close to her. She identified this man as Ellis. Ellis started talking to Doe in a friendly manner and Doe was friendly back. Doe willingly left the library with him, and they drove to the house of a man she came to know as Slim. Slim, Slim's wife, and another man were in the home, and Doe watched television while the three men smoked marijuana.
Doe then willingly went with Ellis to an apartment she believed was his home. A man and woman in their 40's were in the apartment watching television downstairs. Ellis led Doe upstairs to his bedroom and closed the door behind them. He played rap music on his laptop computer and sat facing Doe, who was sitting on the bed. Doe touched Ellis's genitals through his clothing and he touched her breasts with her consent. They each took off all of their own clothes and they lay down next to each other. Ellis then knelt between Doe's legs. At first, Doe testified that Ellis did not touch her from that position and that he eventually lay down next to her, where they remained for the rest of the night without touching each other. After she was confronted with her preliminary hearing testimony that Ellis had touched her vagina from the kneeling position, she changed her testimony. She testified that Ellis touched her vagina and moved his fingers in and out of her vagina while he knelt between her legs. She did not remember what happened next, but at some point he was lying next to her. She got on her knees and willingly performed fellatio on Ellis without prompting. They then lay next to each other without touching and fell asleep. Doe was again impeached with her preliminary hearing testimony that Ellis had inserted his penis in her vagina while he was kneeling between her legs. She acknowledged the prior testimony was true. In still later testimony, Doe said that after she removed her clothes Ellis rubbed lotion over her whole body.
Doe spent the next day (Mar. 11, 2010) with Ellis in the apartment. She did not try to call her mother because she was happy to be with Ellis. At about 10:00 p.m., she left the apartment with Ellis, thinking they were going to buy food. Instead, Ellis drove her to a Motel 6 and led her into a motel room. After Doe watched television for a while, an older white man arrived, talked to Ellis outside the room for a few minutes, and then entered the room. He sat next to Doe and squeezed her breasts with his hands. She tried to ignore him and after a few minutes went to the bathroom. She returned and watched television. The white man remained in the room for a couple of hours but did not touch her again. Doe initially testified that she saw the man wad up money and put it in his pocket when he was leaving. She was impeached with her preliminary hearing testimony that she saw him take a few bills out of his pocket before he left the room and that Ellis entered the room right after he left. She then testified at trial that she saw the older man take twenty dollar bills out of his pocket when he left the room and also saw him put the bills back in his pocket, and that Ellis entered the room hours after the older man left. At about midnight, Slim came into the motel room, asked if she was okay, and left. Ellis was just outside the door at the time. Doe did not try to contact her mother that night because she was still happy to be with Ellis. She spent the night with Ellis in the motel room, but they slept on separate beds and no sexual activity occurred between them.
On the following day (Mar. 12, 2010) in the nighttime, Ellis and Doe left the motel and drove to an apartment building. While they were sitting together in Ellis's car outside the building, Ellis said to her in an angry tone, “ ‘I want you to make me some money.’ ” She understood his comment to mean that he wanted her to “be a ho,” that is, “[s]leep around with people” for money. This was the first time Ellis had brought up this subject, which made her feel uncomfortable. When she said, “No,” Ellis reached over and choked her, cutting off her breath for more than a minute. Doe struggled, got Ellis's hands off her throat, and left the car.
Doe testified that she then walked up to an older woman who was standing by a stairway near a downstairs apartment and asked if she could use her phone. The woman agreed. Doe called her mother and asked to be picked up, but could not describe where she was. When Doe walked out of the woman's apartment, Ellis was standing by the door, looking angry and staring at her. Ellis then drove her home. Doe later testified that after she entered the older woman's apartment, Ellis banged on the door, Doe started crying, and the older woman tossed Doe her phone so she could call her mother. Ellis then pulled Doe out of the house, saying, “ ‘[B]itch, she my ho.’ ” The older woman called Doe's mother, and Ellis drove Doe home. Doe was impeached with her preliminary hearing testimony that, after she got away from Ellis in the car, she hid behind the door to the apartment building and did not enter any of the apartments. Ellis found her, asked if she wanted to go home, and took her home.
Doe testified that in each of her statements, including her preliminary hearing testimony and her trial testimony, she was only partially truthful.
Gilfoy testified that during his initial interview with Doe on the day she returned home, Doe agreed to lead him to the apartment where the driver or Suge had taken her. She led Gilfoy to an apartment on Grimmer Boulevard, and she later led the detective assigned to the case, Officer Michael Gebhardt, to the same location. When Doe arrived at the apartment with Gebhardt, she immediately started sobbing and was unable to talk for five to six minutes. Gebhardt later determined that Betty Moore La Blanc (Moore) lived in the apartment and that Ellis often stayed there. Based on information he received from Moore, Gebhardt created a photographic lineup that included Ellis's image. Both Moore and Doe identified Ellis in the array as Suge. Moore also identified Doe by photograph.
Doe was medically examined at Children's Hospital in Oakland. Dr. James Crawford–Jakubiak, medical director of the Center for Child Protection (Center) at Children's Hospital, testified that photographs taken of Doe late on March 12 or early on March 13, 2010, during a sexual assault and rape trauma (SART) examination showed an abrasion on her hymen. He opined that the abrasion could only have been caused by penetration of the vagina and that the abrasion was one to four days old.
Daniel Espindola, assistant general manager of the Motel 6 at 5601 Mowry Avenue in Newark, testified that Ellis rented room 242 at the motel from March 11 to March 12, 2010, paying cash. Per motel policy, the lodger must produce picture identification, which is reviewed by the front desk clerk before the transaction is completed.
Moore testified that Ellis, whom she knew as Suge, was like an adopted son to her. Ellis kept his things in her apartment and was often in the apartment. She thought Ellis was about 19 years old. In about March 2010, Ellis brought Doe over to the apartment and Moore let them go upstairs. About a half hour later, she checked to make sure their door was not closed and saw them sitting at the foot of the bed, hugging and holding hands. About a half hour later, they left the apartment. A couple of weeks later, Ellis brought Doe back and they again went upstairs. About a half hour later, she went upstairs and they were listening to music on the laptop.
The parties stipulated that Ellis was 29 years old in March 2010.
Tony Cotton, who used the nickname Slim, testified that Ellis came to his house with Doe in March 2010. She appeared to be about 15 years old. Cotton's girlfriend and another male were also present and everyone probably was smoking marijuana. After about 20 minutes, Ellis and the girl left. A few days later, Cotton saw the girl in a motel room with Ellis and a white man about 30 years old. He had seen the white man at Ellis's house on a prior occasion. Cotton had gone to the motel to get some marijuana from Ellis and when he knocked on the door, Ellis opened it. Cotton wanted to use the bathroom, but he saw that the girl was in there. The white man was also in the bathroom. Cotton noticed in the room marijuana, a marijuana pipe, and a towel that looked like it had blood and dirt on it. After he got his marijuana from Ellis, he left. At the time Cotton testified, he was on probation for a misdemeanor theft, he had at least six prior felony convictions for theft and burglary, and he had spent time in prison.
Michelle Taylor testified that she lived in a downstairs apartment at an apartment complex frequented by Ellis, whom she knew as Suge. On March 11 or 12, 2010, she saw Ellis and a young girl sitting in a car outside the apartment building. On March 12, the girl, looking scared, shocked and teary-eyed, came up to her and asked to use the bathroom in her apartment. Taylor noticed that Ellis was outside. After the girl used the bathroom, Taylor asked her what was wrong. The girl said she wanted to call her mother and Taylor handed her a phone. The girl asked her mother to come get her, then handed the phone to Taylor and the mother asked Taylor to describe Doe's location. Taylor told the mother that Doe had been choked and she arranged to meet the mother at a nearby 7–Eleven. In the meantime, Ellis walked up to Taylor's front door and said, “ ‘Come out, bitch’ ” in a loud, very rough, angry voice. The girl left the apartment, either walking out or being pulled out by Ellis.
The jury convicted Ellis of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a); counts one, three); oral copulation of a child under the age of 14 and more than 10 years younger than himself (§ 288a, subd. (c)(1); count two); sexual penetration by foreign object of a child under 14 (§ 289, subd. (j); count four); pandering by encouragement (§ 266i, subd. (a)(2); count six); procuring a child under age 16 to engage in a lewd act (§ 266j; count seven); and first degree residential burglary (§ 459, count eight). The jury found true an allegation that the burglary was committed when a person, not an accomplice, was present in the residence. The court sentenced appellant to a total term of 17 years and four months in state prison.
II. Discussion
Ellis challenges his convictions on two grounds. First, he contends that the trial court erred in admitting the SART photographs of Doe, upon which Dr. Crawford–Jakubiak relied in rendering his opinion. Ellis argues the photographs were not properly authenticated and that he had no opportunity to cross-examine the photographer in violation of his confrontation clause rights. Second, Ellis argues the court erred in excluding a journal written by Doe, which he sought to use to impeach her credibility. Ellis also argues his sentence on the pandering charge should have been stayed under section 654.
A. SART Photographs
1. Authentication
Ellis argues the photographs were not properly authenticated. We disagree.
We question whether Ellis has preserved this argument. During discussion of counsel's confrontation objection, defense counsel insisted that if Dr. Crawford–Jakubiak were allowed to offer an opinion based on the photographs “they have to come into evidence.” Defense counsel herself then offered them into evidence. Colloquy by the court with counsel at the close of testimony indicates that the photographs (Exhibit 17A) were admitted without objection. However, since this issue has not been raised or briefed by the parties, we do not decide it and we address the merits of the claim.
Photographs are considered “writings.” (Evid.Code, § 250; see Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, 24 Cal.Rptr.2d 528 [videotape].) To be admissible in evidence, they must be authenticated. (Evid.Code, § 1401, subd. (a).) That is, there must be evidence that they are accurate depictions of what they purport to show. (Evid.Code, § 1400; see People v. Mayfield (1997) 14 Cal.4th 668, 747, 60 Cal.Rptr.2d 1, 928 P.2d 485 [videotape].) The proponent of the evidence has the burden of producing evidence to establish authenticity. (Evid.Code, § 403, subd. (a)(3); People v. Marshall (1996) 13 Cal.4th 799, 832, 55 Cal.Rptr.2d 347, 919 P.2d 1280.) This burden “is not to establish validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could [find by a preponderance of the evidence] the proffered writing is authentic.” (People v. Valdez (2011) 201 Cal.App.4th 1429, 1437, 135 Cal.Rptr.3d 628; People v. Marshall, at pp. 832–833, 55 Cal.Rptr.2d 347, 919 P.2d 1280.) We review the trial court's determination of this issue for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197, 66 Cal.Rptr.2d 123, 940 P.2d 710.)
Photographs are typically authenticated “by the testimony of a person who was present at the time the picture[s] [were] taken, or who is otherwise qualified to state that the representation[s] [are] accurate” (People v. Bowley (1963) 59 Cal.2d 855, 862, 31 Cal.Rptr. 471, 382 P.2d 591 (Bowley )), such as an expert on photograph alteration ( id. at p. 860, 31 Cal.Rptr. 471, 382 P.2d 591). However, and contrary to Ellis's argument on appeal, photographs may also be authenticated by other means. Any evidence that sufficiently establishes the photographs accurately depict what they purport to show is adequate, including “[c]ircumstantial evidence, content and location.” (People v. Gibson (2001) 90 Cal.App.4th 371, 383, 108 Cal.Rptr.2d 809 [writings authenticated as writings by defendant by content (defendant's alias and details corroborated by other evidence), location (in defendant's residence), and absence of evidence they were written by anybody else]; accord, People v. Valdez, supra, 201 Cal.App.4th at p. 1435, 135 Cal.Rptr.3d 628 [photograph posted on social media internet page authenticated by content (image matched defendant's appearance), circumstantial evidence (same social media page included messages addressed to names and designations that could be matched with defendant and listed interests that matched defendant's interests), and absence of evidence that photograph was not genuine].)
In order to render his medical opinion at trial, Dr. Crawford–Jakubiak accessed about 30 photographs that were taken during Doe's sexual assault examination. The prosecution offered the photographs as business records. In addition to offering his expert medical evaluation, Dr. Crawford–Jakubiak testified as custodian of records for the Center. He testified that as medical director of the Center, he was personally and solely responsible for the Center's system of image storage, and that he was “intimately familiar” with how the images are entered into the computer system. He testified that examiners at the Center take pictures of any “physical findings” they make during a sexual assault examination. Photographs of a patient's internal genital anatomy are taken with a colposcopic instrument, which provides magnification and additional light to create images that are then captured with a digital camera. The examiners use a separate memory card for each patient and they include on the memory card pictures of the patient, the patient's unique medical record number and the date in addition to pictures of their physical findings. The examiners then put the memory card in a sealed envelope, write the patient's medical record number on the outside of the envelope, and place the envelope in a locked cabinet. Every morning, the Center's secretary removes envelopes from the locked cabinet, takes them to the Center's computer, and downloads images from each memory card in the envelopes to the computer hard drive. Each computer file containing the images of one memory card is named using the patient's medical record number and the date the photographs were taken. The number is checked against the images to make sure the medical record number in the images matches the medical record number in the computer file name. It is part of Dr. Crawford–Jakubiak's responsibilities to review the entire record of each examination, including the photographs, in order to render an independent opinion of the examination results, and he did so here. Dr. Crawford–Jakubiak retrieved the images taken during Doe's examination from the computer, matching them with her unique medical record number, and he copied the photographs onto a storage disk that he brought with him to court.
Only three of the 30 photographs were actually received in evidence. The printed images from photographs stored on digital media are presumed to be accurate representations of the images they purport to represent. (Evid.Code, § 1553, subd. (a).)
The photographs are taken by a Nikon digital camera connected to the colposcope, with the colposcope serving as the camera lens. It takes no measurements, and requires no calibration.
The testimony of Dr. Crawford–Jakubiak was more than sufficient to allow a trier of fact to find by a preponderance of evidence that the SART photographs accurately depicted what they purported to show, i.e., images of Doe's genitalia on March 12–13, 2010. Therefore, the trial court did not abuse its discretion in admitting the photographs in evidence.
2. The Confrontation Clause
Ellis contends that admission of the SART photographs violated his confrontation clause rights. He argues, “The manner, time, identity of the photo subject and other circumstances surrounding the creation of these photographs are all subject to [the Sixth Amendment right to confrontation and] cross-examination,” and contends the circumstances here are analogous to confrontation clause cases involving admission of forensic laboratory reports without testimony by the person actually conducting the tests.
The confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) In Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford ), the United States Supreme Court “adopted a fundamentally new interpretation of the confrontation right, holding that ‘[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ [Citation.]” (Williams v. Illinois (2012) 567 U.S. ––––,132 S.Ct. 2221, 2232, 183 L.Ed.2d 89 (plur. opn. of Alito, J.) (Williams ); see also People v. Dungo (2012) 55 Cal.4th 608, 616, 147 Cal.Rptr.3d 527, 286 P.3d 442 (Dungo ).) Crawford did not, however, adopt a particular definition of “testimonial.” (Crawford, at p. 52, 124 S.Ct. 1354, 158 L.Ed.2d 177; see also Dungo, at p. 616, 147 Cal.Rptr.3d 527, 286 P.3d 442.)
Efforts by both the United States Supreme Court and our own Supreme Court to more precisely define the contours of the confrontation clause, and to determine what is testimonial hearsay have proven challenging and problematic, with no clear majority view in many of the recent United States Supreme Court decisions, and multiple concurring and dissenting opinions by our own Supreme Court justices. In Williams, for example, a forensic specialist at the Illinois State Police laboratory, testified that she matched a DNA profile produced by an outside laboratory, Cellmark, from vaginal swabs of a sexual assault victim to a profile the state laboratory produced using a sample of the petitioner's blood. (Williams, supra, 132 S.Ct. at p. 2227 (plur. opn. of Alito, J.).) At trial, the outside laboratory report was not introduced into evidence, and no analyst from that laboratory testified. (Id. at p. 2230.) A majority of the justices found that the expert's testimony did not violate the defendant's confrontation clause rights. (Id. at p. 2244.) But, as our Supreme Court observed in Dungo, the Williams four-one-four opinion reflected “widely divergent views, none of which was able to garner majority support.” (Dungo, supra, 55 Cal.4th at p. 618, 147 Cal.Rptr.3d 527, 286 P.3d 442.) Indeed, our own Supreme Court's analyses in three recent confrontation clause cases decided on the same day—Dungo, People v. Lopez (2012) 55 Cal.4th 569, 147 Cal.Rptr.3d 559, 286 P.3d 469 ( Lopez ), People v. Rutterschmidt (2012) 55 Cal.4th 650, 147 Cal.Rptr.3d 518, 286 P.3d 435 ( Rutterschmidt )—generated nine separate opinions, evidencing what Justice Liu characterized as the “the muddled state” of current doctrine in this area. (Lopez, at p. 590, 147 Cal.Rptr.3d 559, 286 P.3d 469 (dis. opn. of Liu, J.).)
The consistent principle that is articulated in both the federal and state high court cases is that the confrontation clause is not implicated unless there is evidence presented of a hearsay statement, i.e. a statement from a “witness absent from trial,” which is “testimonial.” ( Williams, supra, 132 S.Ct. at p. 2232 (plur. opn. of Alito, J.); Dungo, supra, 55 Cal.4th at p. 616, 147 Cal.Rptr.3d 527, 286 P.3d 442; Lopez, supra, 55 Cal.4th at pp. 580–581, 147 Cal.Rptr.3d 559, 286 P.3d 469.) The photographs at issue here fail to meet the threshold hearsay requirement.
A five-justice majority of the high court and at least six of the seven justices on the California Supreme Court appear to agree that, for purposes of the confrontation clause, out-of-court statements admitted as basis evidence during expert testimony are admitted for their truth if treated as factual by the expert and, thus, implicate confrontation rights if the statements are testimonial. (See Williams, supra, 132 S.Ct. 2221; Lopez, supra, 55 Cal.4th 569, 147 Cal.Rptr.3d 559, 286 P.3d 469.)
3. Photographs are Not Hearsay
Hearsay is an out-of-court “ statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.Code, § 1200, subd. (a), italics added.) A “statement” is oral or written verbal expression or nonverbal conduct of a person that is intended to be a substitute for oral or written verbal expression. (Evid.Code, § 225.) The SART digital photographs are not “verbal expressions,” nor are they made by a “person.” “Only people can generate hearsay. Machines, animals, chemical reactions cannot. (See Simons, Cal. Evidence Manual (2012 ed.) § 2.2, pp. 74–75.)” ( Dungo, at pp. 646–647, 147 Cal.Rptr.3d 527, 286 P.3d 442 (dis. opn. of Corrigan, J.).)
“ ‘Person’ includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” (Evid.Code, § 175.)
In Lopez, supra, 55 Cal.4th 569, 147 Cal.Rptr.3d 559, 286 P.3d 469, our Supreme Court confirmed that raw machine generated data is not a hearsay statement. The defendant in Lopez was charged with vehicular manslaughter while intoxicated (§ 191.5, subd. (b)). To prove intoxication, the prosecution at trial introduced into evidence a laboratory analyst's report on the percentage of alcohol in a blood sample taken from defendant following the fatal accident. The analyst who conducted the testing did not testify, but a colleague did. (Lopez, at p. 573, 147 Cal.Rptr.3d 559, 286 P.3d 469.) The testifying criminalist said that he had reviewed a laboratory report by the criminalist who had analyzed defendant's blood sample. A copy of the six-page laboratory report was admitted into evidence over defense objection. The second page of the report was a printout of the gas chromatography machine's calibrations on the day of the test. Pages 4 and 5 of the report showed two computer-generated numerical results (.0906 and .0908) of two laboratory analyses of the defendant's blood sample. (Id. at pp. 582–583, 147 Cal.Rptr.3d 559, 286 P.3d 469.) Pages 3 and 6 were reports of “quality control runs.” The court held that pages 2 through 6 of the report, consisting entirely of data generated by a gas chromatography machine, were not “statements” of the analyst. (Id. at p. 583, 147 Cal.Rptr.3d 559, 286 P.3d 469.) The court acknowledged that the United States Supreme Court has not yet considered whether the prosecution's use at trial of a machine printout violates a defendant's right to confront and cross-examine the machine's operator where the printout contains no statement from the operator attesting to the validity of the data shown. However, the Lopez court upheld the use of such printouts citing with approval federal appellate court opinions. ( Lopez, at p. 583, 147 Cal.Rptr.3d 559, 286 P.3d 469, citing U.S. v. Moon (7th Cir.2008) 512 F.3d 359, 362 [“the instruments' readouts are not ‘statements,’ so it does not matter whether they are ‘testimonial’ ”]; U.S. v. Washington (4th Cir.2007) 498 F.3d 225, 231 [“the raw data generated by the machines do not constitute ‘statements,’ and the machines are not ‘declarants' ”].) The court held that “Because, unlike a person, a machine cannot be cross-examined, here the prosecution's introduction into evidence of the machine-generated printouts ... did not implicate the Sixth Amendment's right to confrontation.” ( Lopez, at p. 583, 147 Cal.Rptr.3d 559, 286 P.3d 469.)
Lopez separately addressed the admissibility of the information contained on the first page of the report, consisting of a “chain of custody log sheet” and a chart showing the results of nine blood samples, including defendant's, with the identifying number assigned by the laboratory to each sample. The chart contained information filled in by hand by a laboratory assistant (“Booking # ,” “Lab Number,” “Sample Sealed,” “Subject's Name,” and “Arresting Officer”) for each blood sample. Information as to the date the blood was analyzed and the test result, with the corresponding identifying lab number assigned by the laboratory assistant, was entered by the analyst. (Lopez, supra, 55 Cal.4th at pp. 582–584, 147 Cal.Rptr.3d 559, 286 P.3d 469.) The court found the notations entered by the laboratory assistant, particularly those linking defendant's name to the assigned blood sample lab number, a “more difficult question.” (Lopez, supra, 55 Cal.4th at p. 583, 147 Cal.Rptr.3d 559, 286 P.3d 469.) They were clearly statements by a person. However, accepting that such information was being offered for the truth of the matter asserted, the court found that the report containing the statements lacked the formality required to be considered testimonial. (Id. at pp. 583–585, 147 Cal.Rptr.3d 559, 286 P.3d 469.) Ellis did not challenge in the trial court Dr. Crawford–Jakubiak's use of the examiner-assigned identifiers to connect the photographs to Doe, and makes no such challenge here.
We believe the same is true of the digital camera images presented here. “Photographs ... are demonstrative evidence, depicting what the camera sees. [Citations.]” (People v. Cooper (2007) 148 Cal.App.4th 731, 746, 56 Cal.Rptr.3d 6 ( Cooper ).) The California Supreme Court long ago rejected the view that photographs are essentially expressions of a witness's testimony. In Bowley, the court first set forth conflicting views about the nature of photographic evidence: “According to Professor Wigmore, a photograph is no more than the nonverbal expression of the witness upon whose foundation testimony its authenticity rests. [Citations.] It is merely that witness' testimony in illustrated form; a ‘pictorial communication of a qualified witness who uses this method of communication instead of or in addition to some other method.’ [Citation.] ... [¶] Other authorities disagree. They urge that once a proper foundation has been established as to the accuracy and authenticity of a photograph, ‘it speaks with a certain probative force in itself.’ [Citation.]” (Bowley, supra, 59 Cal.2d at pp. 859–860, 31 Cal.Rptr. 471, 382 P.2d 591.) The court then adopted the latter view, explaining: “There is no reason why a photograph or film, like an X-ray, may not, in a proper case, be probative in itself. To hold otherwise would illogically limit the use of a device whose memory is without question more accurate and reliable than that of a human witness. It would exclude from evidence the chance picture of a crowd which on close examination shows the commission of a crime that was not seen by the photographer at the time. It would exclude from evidence pictures taken with a telescopic lens. It would exclude from evidence pictures taken by a camera set to go off when a building's door is opened at night. [Citations.] We hold, therefore, that a photograph may, in a proper case, be admitted into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows.” (Id. at p. 861, 31 Cal.Rptr. 471, 382 P.2d 591.)
We are aware that the Supreme Court has granted review in two cases addressing the admissibility of computer-generated red light camera photographs, video and data. (See People v. Goldsmith (2012) 203 Cal.App.4th 1515, 138 Cal.Rptr.3d 305, review granted May 9, 2012, S201443; People v. Borzakian (2012) 203 Cal.App.4th 525, 136 Cal.Rptr.3d 772, review granted, May 9, 2012, S201474.) In Goldsmith, the Second District Court of Appeal held that red light camera enforcement photographs, video, and data imprinted on them were not hearsay. In Borzakian, a different division of the Second District reversed a conviction for a traffic infraction based on an automated camera enforcement system, but did so based on a lack of proper authentication and foundation. Among the issues to be briefed and argued before the Supreme Court is whether such automated traffic enforcement evidence is hearsay and, if so, whether any exceptions apply.
Ellis nevertheless argues the photographs should not have been admitted in evidence unless and until he had the opportunity to confront and cross-examine the photographer to “explor[e] the possibility that she lacked proper training, had actually taken photos of the complaining witness, as well as ... [whether] the photographic image [was] subject to distortion based on a number of factors such as focus, lighting and the skill of the person shooting the photographs.” This, however, is essentially a challenge to the authentication of the photographs, and a claim, which we have already rejected, that photographs must be authenticated through the testimony of the person who took the photographs. Ellis cites no authority that he has a confrontation clause right to demand that the photographs be authenticated in a particular manner, and as we have discussed ante, no “statements” by the photographer were admitted in evidence in this case. In fact, Dr. Crawford–Jakubiak's testimony clearly shows that the raw data contained in the photographs themselves would have been meaningless to any nonmedical observer without the expert interpretation which he provided. Consequently, Ellis was never denied the right to confront a “witness” who testified against him.
The properly authenticated photographs were themselves probative demonstrative evidence of a physical trauma suffered by Doe. As “demonstrative evidence,” the photographs were not out-of-court hearsay “statements” by a “person” that would implicate a Sixth Amendment confrontation right. (Cooper, supra, 148 Cal.App.4th at p. 746, 56 Cal.Rptr.3d 6.)
B.–C.
See footnote *, ante.
III. Disposition
The judgment is affirmed. We concur:
Jones, P.J.
Simons, J.
Bruiniers, J., concurring.
I write separately from the majority opinion I have authored to express my view that even if the digital photographs at issue here could somehow be characterized as out-of-court “statements” of a “person,” they still would not be considered “testimonial” under the confrontation clause, as articulated by our Supreme Court in People v. Dungo (2012) 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442 (Dungo ). “Although the high court has not agreed on a definition of ‘testimonial,’ testimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.” (Dungo, supra, 55 Cal.4th at p. 619, 147 Cal.Rptr.3d 527, 286 P.3d 442.) “The question of what out-of-court statements are and are not testimonial has divided the justices of the United States Supreme Court, whose decisions have not yet yielded a clear definition or test. But the justices have consistently considered two factors in deciding whether a given statement sufficiently resembles the English court abuses that gave rise to the confrontation clause, primarily the use at trial of witness statements obtained through ex parte examination: (1) the degree of formality or solemnity with which the statement was made and (2) the degree to which it was produced for use at trial. The more a statement resembles the ‘ “solemn declaration or affirmation” ’ that is testimony, commonly understood, and the more it was expected, when made, ‘ “to be used prosecutorially” ... “at a later trial,” ’ the more centrally it is located within the ‘core class of “testimonial” statements.’ [Citation.]” (Id. at p. 622, 147 Cal.Rptr.3d 527, 286 P.3d 442 (conc. opn. of Werdegar, J.); see also Williams v. Illinois (2012) 567 U.S. ––––,132 S.Ct. 2221, 2242, 183 L.Ed.2d 89 (plur. opn. of Alito, J.) (Williams ) [“abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions”].)
I would hold that the photographs at issue here lack the requisite degree of formality or solemnity, and that they do not meet the “primary purpose” test.
I. Formality or Solemnity
To be testimonial the out-of-court statement must have been made with some degree of formality or solemnity (Davis v. Washington (2006) 547 U.S. 813, 830–831 & fn. 5, 126 S.Ct. 2266, 165 L.Ed.2d 224, [“formality is indeed essential to testimonial utterance”] ), although the degree of formality required remains a subject of dispute in the United States Supreme Court. (People v. Lopez (2012) 55 Cal.4th 569, 581–582, 147 Cal.Rptr.3d 559, 286 P.3d 469 ( Lopez ).) In Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ), the Supreme Court defined “testimony” for confrontation clause purposes as “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” (Crawford, at p. 51, 124 S.Ct. 1354, 158 L.Ed.2d 177.) The United States Supreme Court has addressed the application of this standard to forensic evidence in two recent cases. (Melendez – Diaz v. Massachusetts (2009) 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 ( Melendez–Diaz ) and Bullcoming v. New Mexico (2011) 564 U.S. (3), 131 S.Ct. 2705, 180 L.Ed.2d 610] ( Bullcoming ).)
In Melendez–Diaz, the trial court admitted in evidence affidavits that certified the results of laboratory tests on substances that had been seized by police, verifying they were controlled substances. (Melendez – Diaz, supra, 557 U.S. at pp. 307–308, 129 S.Ct. 2527.) The Supreme Court held that the affidavits fell “within the ‘core class of testimonial statements' ” subject to the confrontation clause. Id. at p. 310, 129 S.Ct. 2527.) “The fact in question [was] that the substance found in the possession of [the defendants] was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial .... [¶] ... [M]oreover, ... the affidavits [were] ‘ “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” ’ [citation] .... [¶] ... Absent a showing that the analysts were unavailable to testify and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘ “be confronted with” ’ the analysts at trial. [Citation.]” (Id. at pp. 310–311, 129 S.Ct. 2527.) The court stressed that the laboratory certificates at issue were “quite plainly affidavits: ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths. ‘ [Citation.]” (Id. at 310, 129 S.Ct. 2527.)
In Bullcoming, the trial court admitted a laboratory report of the alcohol level in a defendant's blood sample through the testimony of an analyst who worked in the laboratory where the tests were performed, but who had not personally performed or observed the specific tests at issue. (Bullcoming, supra, 131 S.Ct. at p. 2709.) The Supreme Court held the evidence was admitted in violation of the defendant's confrontation rights. (Id. at pp. 2713–2717.) Distinguishing “representations, relating to past events and human actions” from “raw, machine-produced data” (id. at p. 2714), the high court emphasized that the laboratory certificate containing those representations was “ ‘formalized’ in a signed document ... referring to ... rules” that made the document admissible in court.” (Id. at p. 2717; see Lopez, supra, 55 Cal.4th at p. 581, 147 Cal.Rptr.3d 559, 286 P.3d 469.)
At issue in Dungo were certain statements in an autopsy report, where the testifying pathologist had not conducted the autopsy. (Dungo, supra, 55 Cal.4th at pp. 618–619, 147 Cal.Rptr.3d 527, 286 P.3d 442.) The court found no confrontation clause violation in part because the particular statements at issue, which described objective facts, were not the sort of formal testimony that implicated the confrontation clause. (Id. at pp. 619–621, 147 Cal.Rptr.3d 527, 286 P.3d 442.) Specifically, the court held that “statements describing the pathologist's anatomical and physiological observations about the condition of the body” were not formal testimony subject to the confrontation clause. (Id. at p. 619, 147 Cal.Rptr.3d 527, 286 P.3d 442.) “These statements, which merely record objective facts, are less formal than statements setting forth a pathologist's expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment. Such observations are not testimonial in nature. (Melendez – Diaz, supra, 557 U.S. at p. 312, fn. 2, 129 S.Ct. 2527 [‘medical reports created for treatment purposes ... would not be testimonial under our decision today’].)” (Dungo, at pp. 619–620, 147 Cal.Rptr.3d 527, 286 P.3d 442; see also id. at p. 621, 147 Cal.Rptr.3d 527, 286 P.3d 442 [“facts that Dr. Lawrence related to the jury were not so formal and solemn as to be considered testimonial for purposes of the Sixth Amendment's confrontation right”].) Similarly, the Supreme Court in Lopez found identifying information, notations and results contained on a laboratory report on analysis of blood samples, entered by a laboratory assistant and by the examining analyst, to be admissible over a confrontation 4 clause objection because the report lacked the formality required to be considered testimonial. (Lopez, supra, 55 Cal.4th at pp. 582–585, 147 Cal.Rptr.3d 559, 286 P.3d 469.)
At least one other California appellate court has recently applied Dungo and Lopez in concluding that notes, DNA profiles, and laboratory reports prepared by nontestifying witnesses, and relied upon by testifying criminalists, were merely “unsworn, uncertified records of objective fact,” lacking sufficient formality to be considered testimonial. (People v. Holmes (2012) 212 Cal.App.4th 431, 436, 438, 150 Cal.Rptr.3d 914 (Holmes ).)
The court found the “primary purpose” of the reports to pertain to criminal prosecution because the procedures were undertaken at the behest of police to identify a suspect in a homicide case, and some of the analysis was performed after the defendant was targeted as a suspect. (Holmes, supra, 212 Cal.App.4th at p. 438, 150 Cal.Rptr.3d 914.) Since the reports lacked formality, the court found the primary purpose to be immaterial under Lopez and Dungo. (Holmes, at p. 438, 150 Cal.Rptr.3d 914.)
The Dungo majority opinion did not separately address the admissibility of the autopsy photographs, but made no suggestion that reliance by the witness on the photographs would be subject to a different “testimonial” analysis. (See Dungo, supra, 55 Cal.4th at p. 619, 147 Cal.Rptr.3d 527, 286 P.3d 442 [“Dr. Lawrence's ... description [to the jury of the condition of the victim's body at the time of autopsy] was based on [his] review of Dr. Bolduc's autopsy report and its accompanying photographs,” and the record did not indicate whether that description was based solely on the photographs, solely on the report, or a combination of the two].)
In my view, the “unsworn, uncertified” photographs taken during the SART medical examination depict only objective physical conditions, and are not “formal testimony” for Sixth Amendment purposes. (Dungo, supra, 55 Cal.4th at p. 619, 147 Cal.Rptr.3d 527, 286 P.3d 442.)
II. Primary Purpose
In addition to lacking the formality and solemnity associated with testimonial statements, the Dungo court noted that criminal investigation, while one purpose of the autopsy, was not the primary purpose for recording the facts in question. (Dungo, supra, 55 Cal.4th at pp. 620–621, 147 Cal.Rptr.3d 527, 286 P.3d 442.) To make an extrajudicial statement testimonial, the statement must also have a primary purpose pertaining to the investigation and prosecution of a crime. (Lopez, supra, 55 Cal.4th at p. 582, 147 Cal.Rptr.3d 559, 286 P.3d 469 [“all nine high court justices agree that an out-of-court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution”]; see Williams, supra, 132 S.Ct. at pp. 2243–2244 (plur. opn. of Alito, J.) [even if expert witness testimony relying on Cellmark DNA report had been admitted for the truth of the matter asserted, the report was not testimonial because it was not prepared “for the primary purpose of accusing a targeted individual”]; id. at p. 2273 (dis. opn. of Kagan, J.) [pertinent inquiry is whether the report was prepared “for the primary purpose of establishing ‘past events potentially relevant to later criminal prosecution’—in other words, for the purpose of providing evidence”].)
“[T]he objective forensic autopsy, with its findings including toxicological tests, special tests, microscopic examination, etc. ... does not resemble the ex parte examinations of historical example or the structured police interrogations of Crawford and Davis v. Washington, supra, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. Though there is a structure to the autopsy examination process, it is largely that of a medical examination, not an interrogation.” (Dungo, supra, 55 Cal.4th at p. 624, 147 Cal.Rptr.3d 527, 286 P.3d 442 (conc. opn. of Werdegar, J.).)
See also Dungo, supra, 55 Cal.4th at p. 630, 147 Cal.Rptr.3d 527, 286 P.3d 442 (conc. opn. of Chin, J.): “The out-of-court statements in the autopsy report that Dr. Lawrence relied on to form his opinion are not testimonial under [the primary purpose] test. They did not have the primary purpose of accusing defendant or any other targeted individual of engaging in criminal conduct. The primary purpose of the portions of the report that Dr. Lawrence relied on was to describe the condition of the body.... In describing the condition of the body, there was no prospect of fabrication or incentive to produce anything other than a scientifically reliable report.”
Similarly the evidence before the trial court here confirmed that the primary purpose of the examination conducted on Doe was medical, and not forensic. Dr. Crawford–Jakubiak testified that Doe “had a thorough medical examination. [¶] ... [¶] We do a medical evaluation in the context of somebody who's disclosing sexual assault.” When specifically asked the purpose of his review of the examination results, he said, “The SART exam is a medical evaluation is how I would refer to it, not a SART exam, provides a number of different purposes. [¶] The most important is to make sure in the context of how somebody presents, that they get the medical care that they need. If they were exposed to biological material that could potentially get you sick, could potentially get somebody pregnant, that care is provided to establish whether or not that's an issue. Medications can be provided to prevent those things. If injuries are identified that need care, that's part of the evaluation. [¶] Simultaneous with that ... there's a component where foreign material, if present, can be collected ....” Doe was provided medical care, including medications.
The Second District Court of Appeal, in a decision rendered prior to Dungo and in a slightly different factual context, reached a contrary conclusion in People v. Vargas (2009) 178 Cal.App.4th 647, 100 Cal.Rptr.3d 578 ( Vargas ). The court there found that the statements of a sexual assault victim to a forensic nurse examiner were testimonial and inadmissible, concluding that the nurse “acted as an agent of law enforcement” in examining and questioning the victim. (Id. at p. 660, 100 Cal.Rptr.3d 578.) Aside from the fact that the testimony presented as to the primary purpose of the examination differed significantly in this case from that in Vargas (cf. id. at pp. 660–662, 100 Cal.Rptr.3d 578), the photographs here, as we have discussed, are statements of neither Doe nor the SART nurse. Vargas is thus distinguishable.
As with the autopsy report in Dungo, the physical examination conducted of Doe served several purposes, only one of which was criminal investigation. “The record does not show or suggest that [the SART examiner] was ... guided in [her] conduct and documentation of the [examination] by anything other than professional medical practices and standards.” (Dungo, supra, 55 Cal.4th at p. 627, 147 Cal.Rptr.3d 527, 286 P.3d 442 (conc. opn. of Werdegar, J.).) Further, the court in Dungo specifically analogized the physical autopsy finding to “observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment,” stating that “(s)uch observations are not testimonial in nature. (Melendez – Diaz, supra, 557 U.S. at p. 312, fn. 2, 129 S.Ct. 2527 [‘medical reports created for treatment purposes ... would not be testimonial under our decision today’].)” (Dungo, at pp. 619–620.,147 Cal.Rptr.3d 527, 286 P.3d 442, fn. omitted.)
I find nothing “testimonial” in the use of the medical examination photographs under any standard articulated by the United States Supreme Court or by the California Supreme Court, and thus nothing which would implicate Ellis's 6th Amendment confrontation rights.
I concur.